New Jersey Divorce Law

New Jersey is an Equitable Distribution state. In all actions where a judg-ment of divorce is entered, the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of marital property. Dividing assets equitably means that marital property is not automatically split 50-50. Rather, equitable distribution is defined as the division of marital assets in a manner that is fair but not necessarily equal.

Either spouse's sole property, defined as real, personal or otherwise legally or beneficially acquired during the marriage by either party by way of gift, devise, or intestate succession (inheritance), shall not be subject to equitable distribution. An exception to this rule includes gifts between spouses. Generally, these are subject to equitable distribution.

In making a determination for equitable distribution of property, the court shall consider the following factors when splitting the asset:

• The duration of the marriage;
• The age and physical and emotional health of the parties;
• The income or property brought to the marriage by each party;
• The standard of living established during the marriage;
• Any written prenuptial or post-nuptial agreement made by the parties concerning an arrangement of property distribution;
• The economic circumstances of each party at the time the division of property becomes effective;
• The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
• The contribution by each party to the education, training or earning power of the other;
• The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
• The tax consequences of the proposed distribution to each party;
• The present value of the property;
• The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household ef-fects;
• The debts and liabilities of the parties;
• The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
• The extent to which a party deferred achieving their career goals; and
• Any other factors which the court may deem relevant.

The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party. No person convicted of Murder; Manslaughter; Criminal Homicide; Aggravated Assault; or a substantially similar offense under the laws of another jurisdiction may receive alimony if the crime results in death or serious bodily injury to a family member of a divorcing party; and the crime was committed after the marriage or civil union.

If one spouse is found by the courts to have hidden or frivolously dissipated marital assets, penalties may be assessed.

In all actions brought for divorce, the court may award one or more of the following types of alimony: limited duration alimony; open durational alimony; rehabilitative alimony; or reimbursement alimony to either party.

When determining an award of alimony and what type, the court shall consider the following factors:

• The actual need and ability of the parties to pay;
• The duration of the marriage;
• The age, physical and emotional health of the parties;
• The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
• The earning capacities, educational levels, vocational skills, and employability of the parties;
• The length of absence from the job market of the requesting party;
• The parental responsibilities for the children;
• The time and expense necessary to acquire sufficient education or training to enable the requesting party to find appropriate employ-ment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
• The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
• The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
• The income available to either party through investment of any assets held by that party;
• The tax treatment and consequences to both parties of any alimony award, including the need under tax reform laws of 2019 for the payor to claim alimony as part of taxable income, and
• Any other factors which the court may deem relevant.

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

In determining the length of term of alimony to be awarded, the court will consider the duration of the marriage. Under New Jersey Alimony reform law, in marriages lasting less than 20 years, alimony can only be ordered for up to the duration in years of the marriage. In a marriage lasting 10 years, for example, alimony can only be ordered, at maximum, for 10 years. In marriages that lasted for over 20 years, alimony can be open durational, meaning that it may not have a fixed end point.

Rehabilitative alimony is generally awarded so that the recipient is able to pay for training and associated living costs for entry or re-entry into the job market or to advance to a higher paying position. Rehabilitative alimony shall be awarded based upon a plan in which the receiving spouse or partner shows the scope of rehabilitation, the steps to be taken, and the timeframe, including a period of employment during which rehabilitation will occur.

Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education.

Custody:

New Jersey law declares that it is in the state's public policy to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. All custody rules in the state are intended to protect the best interests of the child.

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal, regardless of gender, and the court shall enter an order which may include one of the following:

• Joint physical and legal custody of a minor child to both parents, which includes provisions for residential arrangements so that the child shall reside either primarily with one parent, or alternatively with each parent in accordance with the needs of the parents and the child, and provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;
• Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
• Any other custody arrangement as the court may determine to be in the best interests of the child.

When making an award of custody, the court shall consider the following factors:

• The parents' ability to agree, communicate and cooperate in matters relating to the child(ren);
• The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiate abuse;
• The interaction and relationship of the child(ren) with the parents and siblings;
• The history of domestic violence, if any;
• The safety of the child(ren) and the safety of either parent from physical abuse by the other parent;
• The preference of the child(ren) when of sufficient age and capacity to reason so as to form an intelligent decision;
• The needs of the child(ren);
• The stability of the home environment offered;
• The quality and continuity of the child(ren)'s education;
• The fitness of the parents;
• The geographical proximity of the parents' homes;
• The extent and quality of the time spent with the child(ren) prior to or subsequent to the separation;
• The parents' employment responsibilities; and
• The age and number of the children.

A parent shall not be deemed unfit unless his/her conduct has a substantial adverse effect on the child(ren).

When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a minor child whose parents are divorced.

Parenting Time (Visitation):

The New Jersey legislature, in noting that there has been an increase in filings for dissolution of marriage, declared that it is in the best interests of the children of these marriages to maintain close relationships with both parents regardless of which parent has the physical custody of the child.

Therefore, the legislature has bolstered the statutory civil remedies available to judges who hear these matters. When one parent fails to comply with the parenting time order (i.e., refusing for the child to see or speak with the other parent), a judge shall have the following sanctions and remedies available:

• The awarding of counsel fees of the aggrieved parent against the parent who violated the terms of the order;
• Community service;
• The awarding of compensatory time for the time with the child for which the party was deprived;
• The awarding of monetary compensation for additional costs incurred when a parent fails to appear for scheduled visitation; and
• Other economic sanctions which may be decided on a case-by-case basis.

Abuse and Custody or Parenting Time:

A person convicted of sexual assault, sexual contact or endangering the welfare of a child under New Jersey statutes shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded.

However, if a court makes this judgment, it shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of the Court.

A denial or custody or parenting time under this rule shall not by itself ter-minate the parental rights of the person denied visitation or custody. Nor shall it affect his/her obligation to support the minor child.

Parents' Education Program:

The Parents' Education Program is a mandatory education program de-signed to assist and advise divorced parents on issues concerning divorce, separation and custody. The program is made available twice a month.

The purpose of the program is to promote cooperation between the parties and to assist parents in resolving issues which may arise during the divorce or separation process, including the following:

• Understanding the legal process and cost of divorce or separation, including arbitration and mediation;
• Understanding the financial responsibilities for the children;
• Understanding the interaction between parent and child, the family relationship and any other areas of adjustment and concern during the process of divorce or separation;
• Understanding how children react to divorce or separation, how to spot problems, what to tell them about divorce or separation, how to keep communication open and how to answer questions and concerns the children may have about the process;
• Understanding how parents can help their children during the divorce or separation, specific strategies, ideas, tools and resources for assistance;
• Understanding how parents can help children after the divorce or separation and how to deal with new family structures and different sets of rules; and
• Understanding that cooperation may sometimes be inappropriate in cases of domestic violence.

The court shall order every person who has filed an action for divorce, nullity or separate maintenance where the custody, visitation or support of minor children is an issue to attend the Parents' Education Program, with the exception of a party with a restraining order obtained pursuant to domestic violence.

Child Support:

New Jersey uses the Income Shares Model for calculating child support. In determining the amount to be paid by a parent for child support and the period during which the duty of support is owed, the court shall consider the following factors:

• Needs of the child(ren);
• Standard of living and economic circumstances of each parent;
• All sources of income and assets of each parent;
• Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
• Need and capacity of the child(ren) for education, including higher education;
• Age and health of the child and each parent;
• Income, assets and earning ability of the child(ren);
• Responsibility of the parents for the court-ordered support of others;
• Reasonable debts and liabilities of each child and parent; and
• Any other factors the court may deem relevant.

A new law, effective February 1, 2017, provides that child support will terminate automatically upon a child's 19th birthday, unless the custodial parent files an application for an extension before the child's 19th birthday. For support to continue, the custody parent must submit "sufficient proof" that at least one of the following circumstances are present:

• The child is still in high school;
• The child is enrolled full-time in a post-secondary program;
• The child has a mental or physical disability that existed prior to the child's 19thbirthday; or
• Other exceptional circumstances subject to court approval.

A court approving a request for continuation will issue a new order with a specified prospective termination date, which must be on or before the child's 23rd birthday.

Before the child's 19th birthday, a child may be considered emancipated if they enter military service, get married, or otherwise show that they are beyond the "sphere of influence" of their parents. A paying parent can go to court to file for termination of child support based on child emancipation.

Jurisdiction over non-resident parent:

In a proceeding to establish, enforce or modify a support order, a tribunal of the State may exercise personal jurisdiction over a non-resident individual or his/her guardian or conservator in the following situations:

• The individual is personally served with a summons or notice within New Jersey;
• The individual submits to the jurisdiction of the State by consent, by entering a general appearance, or by filing a Response which waives any contest to personal jurisdiction;
• The individual resided with the child in the State;
• The individual resided in the State and provided prenatal expense or support for the child;
• The child resides in the State as a result of the acts or directives of the individual;
• The individual engaged in sexual intercourse in the State and the child may have been conceived by that act of intercourse; or
• There is any other basis consistent with the constitutions of the State and the U.S. for the exercise of personal jurisdiction.
• Ensuring Your Children Receive the Child Support They De-serve in New Jersey When one parent acts as the primary guardian for a child, the other parent is generally required to contribute to the financial needs of that child. Generally, in New Jersey, the amount of child support one parent pays another is based on the New Jersey Child Support Guidelines. These Guidelines are found in Appendix IX of the New Jersey Court Rules.

Spouse's Name Changes and Name Changes for Minor Children:

The court, upon or after granting a divorce from the bonds of matrimony may allow either spouse to resume any name used by the party prior to the marriage, or to assume any surname.

Names changes of minor children:

Should one parent change their last name as part of the divorce, they may desire to change their minor child's last name to match.

In New Jersey, a child's name can not be changed as part of the divorce pro-ceedings. The parent who wishes to change the child's name must go through a different and separate court procedure to request the change.

The court generally requires that the other parent agrees to the name change. However, the court can order the name change without the consent of the other parent if it finds the name change to be in the best interest of the child.

When a married couple separates but chooses not to terminate their marriage, they may seek a "divorce from bed and board" or (also called "limited divorce"). Divorce from bed and board is different from "divorce from the bonds of matrimony" in that the parties remain legally married. Divorce from bed and board may be granted for the same grounds as divorce from the bonds of matrimony with the following provisions:

• Both parties petition or join in requesting the action; both spouses must agree that they wish to have the court issue a judgment of di-vorce from bed and board.
• The couple or either party presents sufficient proof of such grounds;
• In the event of a later reconciliation, the parties may apply for a revocation or suspension of the judgment; and
• The granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion to a divorce from the bonds of matrimony, if they so desire.

In a divorce from bed and board, the court can order division of assets and debts as well as child support and alimony or spousal support, just as in a final divorce. Unlike a judgment of final divorce, couples can revoke a divorce from bed and board if they decide to reconcile. Parties typically seek a divorce from bed and board if their religion discourages divorce (absolute divorce), or for financial reasons.

Some spouses may want to file for an annulment (nullity) of their marriage under certain circumstances. In New Jersey, annulments are granted by the courts if one party can sufficiently demonstrate the the other party committed fraud before entering the marriage, or is already previously married (bigamy), and other circumstances were present before the marriage.

If a court nullifies a marriage, there is a judicial statement that there never was a mar-riage. Although more commonly referred to as annulment in other states, New Jersey statutes refers to this procedure as the Nullity of a Marriage.

Nullity of Marriage:

Judgments of nullity of marriage may be rendered in all cases when one of the following criteria is met:

• Bigamy;
• The parties are related within the degrees prohibited by law;
• Either or both parties were, at the time of marriage, physically and incurably impotent, provided the party filing for nullity was unaware of the impotency and the marriage has not subsequently been con-summated;
• Either or both parties lacked the capacity to marry due to mental condition or the influence of intoxicants, drugs or similar agents, and has not subsequently ratified the marriage;
• There was a lack of mutual assent to the marital relationship due to duress or fraud as to the essentials of marriage, and has not subsequently ratified the marriage;
• The application for nullity is made by a wife or husband who was under the age of 18 years at the time of the marriage, unless the marriage was subsequently confirmed after she/he came of age; or
• As is allowable under the general equity jurisdiction of the Superior Court.

New Jersey introduced civil unions under the Civil Unions Act of 2007 as a way to ensure same-sex partners could obtain legal recognition of their relationships. A civil union grants all the same benefits, protections and responsibilities under the law, whether they come from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.

With Marriage Equality becoming the law of the land in 2015, same-sex couples are now able to enter into legal marriages. Civil Unions are still an option, and partners who entered into a Civil Union before or after 2015 are still in a legally binding relationship.

Criteria for Establishing a Civil Union:

To establish a civil union in New Jersey, the parties must meet the following requirements:

• Not be a party to another civil union, domestic partnership or mar-riage in the state or a that is recognized by the state;
• Both parties must be of the same sex; and
• Both parties must be at least 18 years of age, unless the party has received parental consent and is at least 16 years of age. Applicants under 16 years of age must obtain both parental and judicial consent to enter into a civil union.

Entering into a civil union in New Jersey is similar to entering into a mar-riage. As in marriage, a license for a civil union must be obtained from the registrar in the New Jersey municipality where either applicant resides, if one or both is a resident of New Jersey.

If both parties are not residents of New Jersey, the license must be ob-tained from the Registrar of the municipality where the ceremony is to be performed and is only good for use in that municipality.

There is a 72 hour waiting period between applying for the license and receiving the civil union license. The couple must have the ceremony within 30 days of applying for the license.

Dissolution of a Civil Union:

Should parters in a Civil Union wish to legally end their relationships, partners must file to dissolve their Civil Union. Either party must be a bona fide resident of New Jersey at the time of the commencement of the action. Process is served upon the defendant as prescribed by the rules of Supreme Court.

New Jersey civil union couples have all the same state legal rights and benefits as married couples. Therefore, the dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage. Couples ending a civil union or domestic partnership follow the same process as divorcing couples, including filing a complaint for dissolution.

Nullity of Civil Unions (Annulments of Civil Unions):

Judgments of nullity of a civil union may be rendered in all cases when one of the following criteria is met:

• Either of the parties has another wife, husband, partner in a civil union or domestic partner living at the time of establishing the new civil union;
• The parties are related within the degrees prohibited by law from entering into a marriage or establishing a civil union or domestic partnership;
• Either or both parties lacked the capacity to enter into a civil union due to mental condition or the influence of intoxicants, drugs or similar agents;
• There was a lack of mutual assent to the civil union due to duress or fraud as to the essentials of a civil union, and has not subsequently ratified the civil union;
• The application for nullity is made by a party who was under the age of 18 years at the time of the civil union, unless the civil union was subsequently confirmed after she/he came of age; or
• As is allowable under the general equity jurisdiction of the Superior Court.

Domestic Partnerships:

Due to the implementation of the Civil Union Act in New Jersey in 2007, the Domestic Partnership Act was amended to allow new domestic partnership registrations only to individuals age 62 or older.

Couples, who registered as domestic partners prior to the establishment of civil unions with the Civil Union Act, are not required to subsequently enter into civil unions. They may continue to have the rights afforded to domestic partners under the Domestic Partnership Act.

Same sex couples who are already registered as domestic partners (pro-vided they meet the requirements) may enter into a civil union with one another if they choose, without first terminating their domestic partnership. If the domestic partnership was registered in New Jersey, it automatically terminates when the civil union is registered. If the domestic partnership was registered in another state, that state's laws determine the impact of the civil union on the domestic partnership.